Equity Bank (kenya) Limited v Lisa Kawira Mbuba

6. The court issued the conservatory order. 7. Upon receipt of the conservatory order, the Respondent Bank filed (through Thiongo Law Advocates) the present Application dated 9th April 2026 under certificate of urgency seeking the following orders. 8. i. That this Application be certified as urgent and herd ex-parte in the first instance. ii. That there be a temporary stay of execution of the Conservatory Order issued on 17th March 2026 for the preservation of status quo of the bank account number 0XXXXXXXXXX65 held at the Applicant Bank pending the hearing of this Application inter parties. iii. That the Conservatory Order issued on 17th March 2026 be lifted and/or set-aside and the Applicant Bank be discharged unconditionally. iv. That costs of the Application be provided for. The Application was based on the grounds that:i. That the Certificate of Confirmation of Grant was issued on 21st November 2025 and the same was authenticated by the court as a genuine copy of the court records. ii. That the Administrators of the estate of the deceased through their advocates on record instructed the Applicant Bank to comply with the medical emergency of the beneficiary of the estate. iii. That subsequently, the Bank proceeded to comply with the provisions of the Certificate of Confirmation of Grant with respect to the subject account number 0XXXXXXXXXX65 and closed the subject account in the month of January 2026 in line with the Central Bank of Kenya Prudential Guidelines 22/8. iv. That in the circumstances, the Application dated 21st January 2026 and the subsequent conservatory order issued on 17th March 2026 have been overtaken by events since the subject account number 0010101202365 was closed in January 2026 following the transfer of the resultant shares to the beneficiaries with the assistance of the administrators in line with the Certificate of Confirmation of Grant. v. That any execution proceedings instituted against the Applicant would be detrimental and prejudicial to its business and operations. 9. At the hearing of the Application on 22nd April 2026 Ms. Kyeva appeared holding brief for Ms Thiong’o for the Applicant Bank while Mr. Mwendani appeared for the Respondent. Both Counsel were in agreement that the Conservatory order issued by the court on 17th March 2026 was incapable of being implemented by the Bank as the same had been overtaken by events since the account in question had been closed by the date of the order. 10. This court consequently lifted the conservatory order. For clarity of the record, this court’s conservatory order dated 17th March 2026, be and is hereby set aside and the Respondent Bank is duly discharged from the order. 11. With Respect to costs, Ms. Kyeva urged that they be granted costs of their Application. She urged that their Application was necessitated by the orders served upon the Bank. That it had been communicated to the estate that the account was going to be closed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5980/eng@2026-04-27 2

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12. Mr. Mwendani on the other hand urged that the Administrators approached the court on the advice of the responsible Bank Manager and that the Respondent Bank after being served the Application neither responded nor appeared before the court at the hearing to clarify the position. 13. The only issue for my determination is whether the Applicant should be awarded costs of its Application date 9th April 2026. 14. Section 27 of the Civil Procedure Act provides:“ 27. (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. (2) 15. The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.” The Supreme Court in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR held that: “ The award of costs would normally be guided by the principle that ‘costs follow the event’... However, the vital factor in setting the preference is the judicious exercise of discretion by the court..." 16. In Cecilia Karuru Ngayu v Barclays Bank of Kenya & Another [2016] eKLR, Mativo J. (as he then was) outlined factors to consider in awarding costs as follows:“ the court is entitled to look at inter alia (i) the conduct of the parties, (ii) the subject of litigation, (iii) the circumstances which led to the institution of the proceedings, (iv) the events which eventually led to their termination, (v) the stage at which the proceedings were terminated, (vi) the manner in which they were terminated, (vii) the relationship between the parties and https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5980/eng@2026-04-27 3

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(viii) the need to promote reconciliation amongst the disputing parties pursuant to Article 159 (2) (c) of the Constitution. In other wards the court may not only consider the conduct of the party in the actual litigation, but the matters which led to the litigation, the eventual termination thereof and the likely consequences of the order for costs.” 17. In this, case and as per the chronology of events already stated, it appears that the Respondent Bank (Applicant) and the Respondents (Administrators) had been in communication respecting the subject account leading to the Application for the Conservatory Orders granted by the court; and which have now been set aside. 18. The Respondent Bank did not respond to the Application. The record shows that it was served. This court is of the view that had the Respondent Bank responded to the Application dated 21st January 2026 and ofiered the explanation now being ofiered in its Application, the Conservatory Order would not have issued. It also follows that the present Application would not have arisen. It is also instructive that the parties compromised the Application without hesitation and mitigated any further costs. 19. In the exercise of my discretion, I find that the Applicant though successful, cannot be granted costs for an application that arose out of the Applicant’s own omission. 20. For the above reason, I decline to grant costs. Each party shall bear their costs in the Application. Orders accordingly. RULING DELIVERED, DATED AND SIGNED AT CHUKA THIS 27TH DAY OF APRIL, 2026. …....................... R. LAGAT-KORIR JUDGE Ruling delivered in the presence of Ms Murage holding brief for Ms. Kyeva for the Applicant and Mr. Mwendani Franklin for the Respondent. Muriuki (Court Assistant). https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5980/eng@2026-04-27 4

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